- (1.) THIS is a second appeal by the plaintiff against the judgment and decree of the Senior Civil Judge, Jalore reversing that of the Munsif, Jalore in a suit for recovery of a pumping set or in the alternative Rs. 1000/- as its cost.
(2.) IT was alleged by the plaintiff that on 13th June, 1953, he gave one pumping set engine CMC American make, 15-M type with 4-1/2 to 5 H. P. Petrol Kerosine Engine coupled with 3" pump and mounted on steel wheel trolly to the defendants for repairs. The plaintiff alleged that the cost of this engine was Rs. 1000/ -. Since the defendants failed to return the engine inspite of demands, he filed the present suit. The suit was instituted against Hukma and his sons Gopal, Bansilal and Shiv Lal. All the defendants contested suit and repudiated the plaintiff's allegations. They denied having received any engine form the plaintiff for repairs. Defendant Gopal filed a separate written statement and stated that he was living separately for the last ten years from the other defendants. The trial court framed as many as seven issues. Issue No. 1 ran as follows : - "whether the Plaintiff gave engine of pumping set mentioned in paragraph 1 of the plaint valuing Rs. 1000/- to the defendants for repairs. " In support of his case the plaintiff produced documentary and oral evidence. He produced Ex. 2 receipt for Rs. 1000/- given to him by Vijayraj (P. W. I) for the price of the engine purchased from him. Ex. 3 is the cash memo dated 31st March, 1949 given to Vijayraj by the Modern Engineering Company in regard to the disputed engine. Ex. 1 is the receipt with regard to the payment of customs duty paid in respect of this engine. In oral evidence, the plaintiff gave his own state ment and examined six other witnesses. In his evidence as P. W. 6, the plaintiff stated that he had purchased this engine for Rs. 1000/- from Vijayraj (P. W. l)who had given him a receipt for the same. Ex. 2 along with the cash memo Ex. 3. He clearly described that the engine was CMC American type and water pump was coupled with it. It was of 4 1/2 to 5 H. P. and could be run with Kerosene and Petrol. Its capacity was 15000 and it was mounted on a trolly below which there were two wheels. He further stated that he had once lent this engine to Jalore Municipality from 6th June, 1953 to 12th June, 1953. When this engine was returned by the municipality, it gave some sound and one of its pipe line had also fallen in the Baori. Bansilal defendant had made a report to the Municipal Secretary, Jalore about the falling of the pipe line of the engine in the Baori on 9th June, 1953. The plaintiff proved the signatures of Bansilal on this document. He further stated that this engine was also fixed once at the Baori of Taskhan and Mithia (P. W. 2) had taken that engine to that Baori. The same engine was at another time fixed at the well of Kesrimal of village Leta. He stated that when he found the engine giving sound, he enquired about it and was told that its connecting rod and main bearing required repairs and it also required valve grinning. He stated that it was settled with Bansi Lal that he would repair the engine and charge Rs. 25/- for it. Thereafter, on 13th June, 1953, he took the engine in his car and left it at the house of the defendants where Hukma and Bansilal were present at that time. Plaintiff's evidence was corroborated by Mithia (P. W. 2) who stated that he had taken one engine to Baori of Taskhan from the workshop of the plaintiff and brought it from there. He stated that he was once asked by the plaintiff to bring back that engine from the defendants' house on which he went there, but Hukma defendant who was present there told him that the engine was yet to be repaired He stated that he saw the engine at the house of the defendants and it was the same which he had taken to the Baori of Taskhan. Shamsher Singh (P. W. 4) stated that he had accompanied the plaintiff to the defendants' house while he took the engine in his car there. He says that the engine was handed over to the defendants by the plaintiff for repairs. Deva (P. W. 7) stated that he was present at the house of the defendants when the plaintiff along with Shamsher Singh and Bhikampuri came there with one engine. He also helped these persons in putting the engine at the defendants' house. Keshrimal (P. W. 5) stated that one engine was fixed on a well in Leta village by the plaintiff. It was of 5 H. P. and was of American make. He stated that he saw the same engine lying at the defendants' house in the month of Asoj in the same year. Vijayraj (P. W. 1) proved the sale of one engine for Rs. 1000/-to the plaintiff. He also proved Exs. 2 and 3. Bhikampuri (P. W. 3) stated that plaintiff had three engines one of which was of 5 H. P. He also gave its dimensions. He stated that this engine had gone out of order four or five times and on the last occasion it was three or four years back when it went out of order. He stated that he gave engine to Bansilal for repairs. He then stated that the engine which he gave to Bansilal belonged to him and was not included in the three engines of the plaintiff. He stated that he took the engine in the plaintiff's car and left it at Bansilal's house. He also stated that Shamsher Singh witness and the plaintiff were with him at that time. He admitted that he was employed at the plaintiff's workshop. Hukma and Gopal defendants gave their own statements and examined one witness Misrimal (D. W. 2 ). Hukmaram denied having received any engine from the plaintiff for repairs. He also denied having received any engine for repairs from Bhikampuri. The learned Munsif who had recorded the evidence in the case, after considering all the evidence on record, gave a finding in favour of the plaintiff on issue No. 1 and thus gave a decree in his favour. The learned Munsif also considered the evidence of Bhikampuri (P. W. 3) and came to the finding that his statement that the engine which was left at the house of the defendants belonged to him, was false because of the earlier part of his statement that the engine belonged to the plaintiff. Against this judgment the defendants went up in appeal to the court of the Senior Civil Judge, Jalore and the learned Judge held that from the statement of Vijayraj (P. W. 1) it was proved that the engine mentioned in paragraph 1 of the plaint was sold by him to the plaintiff and then he proceeded to examine the question whether the plaintiff had succeeded in proving that the engine described in the plaint was given to the defendants for repairs. In that connection the learned Judge considered the evidence of Mithia (P. W. 2), Bhikampuri (P. W. 3), Shamsher Singh (P. W. 4), Kesrimal (P. W. 5) and Deva (P. W. 7 ). As for the plaintiff he remarked that the plaintiff's statement is that the engine which he purchased from Vijayraj (P. W. 1) was given to the defendants and it was agreed that he would pay Rs. 25/-as repair charges to the defendants. The remaining part of the plaintiff's evidence as regards its type, make, horse power etc. , and the fixing of the engine at the Baori of Taskhan in village Leta and lastly lending of the engine to the municipality and the falling of its pipe line in the Baori and the report made by Bansilal Ex. 6 to the Municipal Secretary, were not considered by the learned Judge. With regard to the evidence of Mithia (P. W. 2) the learned Judge observed that: - "this witness can almost prove that one engine belonging to the plaintiff was lying at the defendants house. This evidence falls short of proving that the particular engine, which has been mentioned in the plaint, was given to the defendants for repairs This witness is an illiterate person who has got no knowledge of machinery and mechanism. He does not give the necessary descriptions of the engine so that it can be distinguished and it can be said that the engine mentioned in the plaint was lying at the defendants' house. Hence, the statement of this witness does not prove that the engine mentioned in the plaint was lying at defendants' house. " Similarly, for the other witnesses i. e. , Deva (P. W. 7 Keshrimal (P. W. 5) and Shamshersingh (P. W. 4), the learned Judge observed that their evidence does not prove that the engine which was either lying at the defendants' house or was seen there was the same which is mentioned in the plaint. As regards Keshrimal (P. W. 5) he observed that his knowledge about the make of the engine and its horse power was based upon the information which he received at Jodhpur about such engines and such statement could not prove the plaintiff's claim. As for Bheekampuri (P. W. 3) he observed that the witness instead of corroborating the plaintiff's allegations rebuts them. He observed that the learned Munsif was wrong in remarking that the witness had been won-over by the defendants. It may be noted that no such remark was made by the learned Munsif. The learned Judge considered the evidence of this witness and said that there was nothing to show that this witness had either been won-over or was influenced in any way. In the result the learned Judge came to the conclusion that the plaintiff firstly failed to prove that he gave the engine mentioned in the plaint which he purchased from Vijayraj, to the defendants; secondly he also failed to prove that it was given to the defendants for repairs. He therefore, decided that issue against the plaintiff and as a result of this finding, dismissed the plaintiff's suit. The plaintiff has now come to this Court in second appeal. It is contended on his behalf that the learned Senior Civil Judge in arriving at his finding over-looked and failed to take into consideration important evidence which had material bearing on the merits of the case i. e. , the plaintiff's own statement and Ex. 6 which was proved to have signed by Bansilal. It was also contended that the learned Judge himself misread the evidence of Keshrimal and Bhikampuri. It was further contended that the learned Judge did not take into consideration the admissions of the defendants as proved by the evidence of Mithia (P. W. 2) regarding the ownership of the engine. On the other hand learned counsel for the respondents has strenuously urged that the High Court has no jurisdiction in second appeal to interfere with the finding of fact arrived at by the first appellate court and in that connection he referred to decisions of the Privy Council and the Supreme Court beginning from the decision in Mussumat Durga Choudhrain vs. Jawahir Singh Choudhri (1), upto the case in V. Ramchandra Ayyar vs. Ramalingam Chettiar (2 ). The locus classicus on the subject is the dictum of the Privy Council in Mussummat Durga Choudhrain's case (1) where it was laid down : "that no second appeal will lie except on the grounds specified in sec. 584 (corresponding to sec. 100 of the present Code ). There is no jurisdiction on the ground of an erroneous finding of fact, however gross or inexcusable the error may seem to be. Where there is no error or defect in procedure, the decision on the question of fact is final if that court had before it evidence proper for its consideration in support of that finding. " It is urged that the above decision governs those cases also where the finding of fact arrived at suffers from the defect that some evidence has been misread or has been overlooked. It may be pointed out that in that case their Lordships of the Privy Council expressed regret that the commissioner dealt with the matter before him in "so meagre a fashion but their Lordships "had no reason to doubt that all the evidence was fully and duly considered by him. " Even if the court arrives at a finding of fact but in the process of arriving at that finding commits error of law or of procedure affecting the merits of the case the finding of fact in that case would be assailable in second appeal. There is abundant authority for the view that if a finding of fact is arrived at by the first appellate court by misreading evidence or by overlooking some important evidence that finding will not be binding in second appeal. In Shankarrao Dagadujirao Jahagirdar vs. Sambh Nathu Patil (3), it was observed by their Lordships of the Privy Council that : "when the existence of a document does not appear from the judgment of the first appellate court to have been appreciated by it, and no effect whatever is given to the statutory presumption arising from the document, the questions of fact as well as of law are open in second appeal as well as in Privy Council appeal. " It therefore, follows that when material evidence has not been considered by the first appellate court in arriving at a finding of fact that finding will be open in second appeal. A similar view was taken by this Court in Kamdar, Thikana Kantalia vs. Heersingh (4), Chandra Ram vs. Bhoma (5), Naurang Rai vs. Ganpat Rai (6), Ram Deen vs. Sheo Prasad (7) and Kishen Lal vs. Sohan Lal (8 ). Other High Courts have also taken the same view and reference may only be made to Subodh Gopal Bose vs. Brojendra Kishore Roy, (9) and Abdul Shakur vs. Kotwaleshwar Prasad (1 ). As has been observed in the last mentioned case, "a court cannot, therefore, be said to arrive at a finding on evidence which it had before it if it arrives at the finding without fully and duly considering it. " I should not be understood to suggest that the first appellate court is required to mention about each and every witness and document in its judgment, but evidence which is of obvious importance or which has been relied upon by the trial court, must appear from the judgment to have been duly considered otherwise, its finding of fact would be assailable in second appeal. In this particular case the learned Judge completely ignored the evidence of the plaintiff. Sec. 120 of the Indian Evidence Act lays down that "in all civil proceedings parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. " The evidence of the plaintiff, therefore, should have been scrutinised by the learned Judge in the same manner as the evidence of other witnesses. The evidence of the plaintiff cannot be ignored merely because he is a party to the suit. Doing so would be to nullify the above provision of the Evidence Act. The plaintiff generally has knowledge of all the material facts alleged in the plaint and his evidence cannot be overlooked. As stated above the plaintiff in his deposition gave full description of the engine which he had handed over for repairs to the defendants. He deposed that the same engine was fixed at the Baori of Taskhan and in village Leta and finally was lent to Jalore Municipality. If the learned Judge had considered this part of the plaintiff's evidence and had read the evidence of the other witnesses along with it he would not have found any difficulty in coming to the conclusion that the engine described in the plaint was given to the defendants for repairs and was latter seen in their possession. The learned Judge also discarded the evidence of Keshrimal on the ground that his statement that it was 5 H. P. engine was based on the information which he had gathered at Jodhpur. This was clearly a misreading of his statement. The witness on the other hand stated that he had seen the Horse Power of the engine written on it. Again the learned Judge erred in remarking that evidence of Bhikampuri (P. W. 3) rebutted the plaintiff's case. The trial court characterised the evidence of this witness as false in view of the earlier part of his statement, but the learned Judge without saying that he was a truthful witness relied upon his evidence. With regard to the appraisal of evidence in appeal it was pointed out by the Supreme Court in Radha Prasad Singh vs. Gajadhar Singh (1) that : "the position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the Appeal Court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judge's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court. But, this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the Appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations iucluding the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of Appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified. " In disagreeing with the opinion of the trial court with regard to the evidence of Bhikampuri, the learned Judge has ignored the above cited principles. Not only that he misread the evidence of that witness, but failed to give due weight to the reasons given by the trial court for its opinion. The trial court had remarked that it was difficult to believe the evidence of this witness that the engine belonged to him because had it been so, the engine would not have been left lying at the defendant's house for several years. The learned Judge gave no answer to this objection. Besides the witness had clearly stated in the earlier part of his statement that one 5 H. P. engine belonged to the plaintiff and it had gone out of order and was given for repairs to the defendants, but had also stated that it was taken in the plaintiff's car to the defendants' house and the plaintiff himself had gone there. If the engine really belonged to the witness, where was the necessity for the plaintiff to go to the defendants' house and take the engine in his own car. This clearly shows that the opinion of the trial Judge that the statement of the witness that the engine belonged to him was false, was correct and the learned Judge had no ground to disagree with him.
(3.) FURTHER there was an important document on record which was relied upon by the trial court i. e. , Ex. 6. Plaintiff's case was that the engine described in the plaint was given to the municipality. In Ex. 6 Bansilal defendant admitted that the same engine belonged to the plaintiff. If the learned Judge had considered that document he could not have said that Bhikampuri's evidence rebutted the plaintiff's case. It appears from the judgment of the learned Judge in so far as the credibility of the plaintiff's witnesses was concerned, he did not disagree with the trial court. What the learned Judge found was that the evidence failed to establish the identity of the engine which the plaintiff alleged in the plaint to have been given to the defendants for repairs. As stated earlier if the learned Judge had read the evidence of these witnesses along with the evidence of the plaintiff, he would not have arrived at this conclusion. In such circumstances when material evidence both oral and documentary in the case was not considered by the learned Judge in first appeal and the evidence of witnesses was misread it will be open to this Court to make a fresh appraisal of the evidence and to arrive at its own conclusion. Finding of fact in such cases would not be binding in second appeal. In my opinion the above mentioned evidence of the plaintiff fully establishes that the engine described in paragraph 1 of the plaint was given to the respondents for repairs. The trial court gave a decree to the plaintiff directing the defendants to return the engine mentioned in the plaint failing which they would be liable to pay Rs. 1000/ -. The question is whether the trial court was right in fixing Rs. 1000/- as the price of the engine. The learned Senior Civil Judge says that the plaintiff has failed to prove the price of the engine at the time it was entrusted to the defendants for repairs. The cost price of the engine according to cash memo Ex. 3 was Rs. 1485/- and the plaintiff purchased it in Smt. 2003 for Rs. 1000/ -. For more than two years it remained with the plaintiff and it is in evidence that it went out of order several times and needed repairs. It would, therefore, not be right to fix the price of the engine at Rs. 1000/- at the time it was given to the defendants for repairs. By the time it was given to the defendants it must have depreciated in value. In my view the depreciation in value of the engine must have been 10% annually and keeping that in view and the fact that it needed repairs, the proper cost price of the engine at that time should be Rs. 750/ -. That being so this appeal is partly allowed, judgment and decree of the learned Senior Civil Judge, Jalore is set aside and that of the Munsif, Jalore is modified to this extent that in case the respondents fail to return the engine to the plaintiff, they would be liable to pay Rs. 750/- to him. The plaintiff will get costs of all the courts from the respondents. Leave to appeal to a larger Bench is refused. .;